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Homesteading

September 29th, 2016

In my final post on Locke’s theory of appropriation/expropriation, a while back, I mentioned that his latter-day successors, Nozick and Rothbard didn’t offer any improvement. I said at the time I would spell this out a bit more. I’ll start with Rothbard who is more politically relevant, and also, in my opinion, more interesting. As an example, at least during his 1960s flirtation with the radical left, and at the time he developed the theory of ‘homesteading’, he favored reparations for slavery.

The core of Rothbard’s position is that appropriation of property justifies ownership even without the Lockean proviso that ‘enough and as good’ is left over for others. Rothbard doesn’t, as far as I can see, go far beyond presenting this as a self-evident truth, and in any case, I don’t propose to argue about in detail. Rather, I want to look at Rothbard’s choice of the term ‘homesteading’ to describe this process. This choice of term is self-refuting in two ways, one that applies to any historical process of appropriation/expropriation and the other specific to the US.

The general point is that the term ‘homestead’ connotes the home of an independent small farmer. There is, however, nothing in Rothbard’s theory to prevent his principle being applied to properties of arbitrary physical size.

The history of European settlement of the New World is full of struggles between early arrivers who turned their cattle loose over vast areas and established vast estates, with or without the prior sanction of the local state power, and latecomers seeking to establish their own homesteads for small-scale self-sufficient farming. After varying periods of conflict, these disputes were eventually arbitrated by state power, typically in ways that gave at least some rights to both sides. (fn: Nozick ‘refutes’ this principle with the silly-clever example of someone pouring a can of tomato juice into the Pacific Ocean. Given the ready availability of real-world cases to consider, this is the kind of philosophical thought experiment that really gets my goat). Rothbard’s terminology suggests the favors the small farmer in this case, but his principle favors the vast estate. Perhaps the term ‘homestead’ is supposed to imply some prohibition on massive claims, but if so, who does Rothbard think will do the arbitration.

There’s a more direct problem for Rothbard as an American. In the US context, ‘homesteading’ has a specific legal and historical meaning. It refers to the granting, by the US state, and subject to a range of conditions, of land previously expropriated from the indigenous inhabitants. The classic piece of legislation was the Homestead Act of 1862, which granted 160 acres of public land to any US citizen willing to settle on and farm the land for at least five years. Among the beneficiaries of this government largesse were the forebears of Cliven Bundy, who homesteaded land in 1877.

Bundy’s claim is that, having inherited land received as a conditional grant from the state, he should now be free of those conditions. This is the same claim made by the great majority of propertarians: despite their belief that the state which created and enforces the property rights system under which we live is an organized system of theft and enslavement, they believe that the property rights they claim should be given to them free of the obligations (for example, the payment of taxes) under which they were granted.

It’s unclear whether Rothbard actually endorsed this claim. His 1969 piece has an interesting discussion of post-socialist privatisation which illustrates the difficulties involved (I’ve changed some notation for clarity)

Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief. On the contrary, C is performing a virtuous act of confiscation, for he is depriving thief A of the fruits of his crime of aggression, and he is at least returning the horse to the innocent “private” sector and out of the “criminal” sector. C has done a noble act and should be applauded. Of course, it would be still better if he returned the horse to A, the original victim. But even if he does not, the horse is far more justly in C’s hands than it is in the hands of B, the thief and criminal.

So far so good. But what if D comes along, knowing nothing of A. Then C appears as having stolen B’s horse, and D is therefore justified in confiscating it. Obviously we can proceed through the alphabet to Z. More interestingly, what if Z claims that A stole the horse’s sire from her (Z’s) grandmother. We have a closed circle in which every claim is as justified (or not) as any other.

A look at the history of any irredentist territorial claim will show that there’s nothing fanciful about a cycle of this kind.

Where does this leave us? Dumping Locke’s proviso doesn’t make a doctrine of property rights based on appropriation/expropriation any more appealing. Nozick’s use of a term that specifically describes rights created by the US state simply emphasizes the point that property rights are always and everywhere social constructs. Your property rights are those that are accepted and enforced by the society to which you belong.

The justice or otherwise of a set of property rights can’t be assessed separately from that of the social structure of which it is a part. To the extent that the social structure is just or unjust, a property rights system that effectively supports and reinforces that social structure shares that character.

Finally, how does this relate to the feeling of rightful possession which all of us have with regard to various things, some but not all of which are recognised as property? A system of property rights works better if the rights it creates tend to coincide with feelings of rightful possession on the part of both the owners and other members of society. Those feelings partly reflect inherent relationships and are partly created by the fact of legal property ownership. For example, I regard my ideas as my own even if, as works for hire, they are the intellectual property of my employer, who may sell them to some third party. But that third party will also claim rightful possession and will feel entirely justified in preventing me from infringing their rights by using what is, from their viewpoint, their idea.

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  1. paul walter
    September 29th, 2016 at 19:45 | #1

    For some reason reading this sort of stuff imparts a sense of discomfort, usually to do with A) Genesis, Original Sin and the Lapse, from there to Cain and Abel in the desert B) indigenes.

    But the piece is good as far as I am concerned, in helping me come to terms with the dis- ease I’ve come to feel about my ancestors and I suppose me as the beneficiary, of theft of the continent from its original owners.

    If Australia was eventually so weak as to be unable to defend itself, a “Treaty “between indigenes willing to take the step and a prospective invading power would claim to be an operation to redress wrongs done in the past regardless if it was a weak pretext for a takeover or not.

  2. Geoff Edwards
    September 29th, 2016 at 20:15 | #2

    1. Prof John, Bentham really won the argument against Locke. The nub of your argument (in the third last and penultimate paragraphs) is surely the correct position.

    2. Even if the settler society accepted the dispossession of the Indigenous inhabitants by the early squatters (possession through conquest or force of arms), this “right” must always be subject to the later exercise of sovereign power under which the state resumes its prerogatives. For example in Queensland, in 1910 the State resumed the land under the bed and banks of boundary watercourses throughout the state without compensation.

    2. Rothbard’s sequence is illogical and invalid. If C takes a horse from B without legal title, C is a thief. Indeed, our criminal law goes further and regards C as a receiver of stolen property, even if C pays full price in good faith.

    3. When titles are allocated (by the state) or transferred (from one individual to another), any conditions under which they were issued that have not yet been fulfilled remain in force (run with the land). (There are some exceptions such as building covenants that expire upon transfer of ownership). Moneys charged as a consequence of the transfer will be called rents or part-payment, not taxes.

    4. Taxes, including property taxes (municipal rates and land tax) arise when the state exercises its sovereign power rather than its land ownership power. Most taxes apply regardless of the status of the land tenure. (There are some exceptions such as exemptions from land tax for leasehold land. Again, these exemptions arise from discretionary use of the sovereign power and are not a concessional condition of tenure).

  3. Malcolm
    September 29th, 2016 at 20:39 | #3

    Did you pick the final example just to annoy me? At least you could have said “written work” rather than “ideas”… given that ideas have no owners, either legally or practically.

  4. Malcolm
    September 29th, 2016 at 20:43 | #4

    Or to go on a different tangent, to talk about ideas and “rightful feelings”, I’d say that if I express an idea in public I feel I should be recognised as the originator of that idea (e.g. “priority” in research). Again venturing into the sphere of “moral rights” and (IMHO) something distinct from property rights.

  5. Ikonoclast
    September 29th, 2016 at 21:59 | #5

    JQ, I wonder what is the relation of modern adverse possession to these issues?

    https://en.wikipedia.org/wiki/Adverse_possession

  6. Bondi boy
    September 30th, 2016 at 01:21 | #6

    Thanks for a very interesting series John which covers a topic I’ve always been interested in. I agree with much of what you say. However, I think the flaw in your argument is that you are saying property rights are a social construct and are usually (maybe always) unjust. But surely justice itself is also a social construct. It is almost always open to interpretation and dispute.

    One has to only observe the way animals behave in nature to understand this. At some point humans decided that justice was important and tried to impose it on the world. But justice, like property right, exists only in our heads. Many societies decided to use their systems of justice (often very far from most people’s understanding of the word certainly) to impose property rights on the world. Since justice itself is a messy social construct, I suppose the outcome that property rights share that characteristic is not surprising. This is especially true during the early days of its implementation.

  7. Ernestine Gross
    September 30th, 2016 at 08:32 | #7

    This topic is new to me and I read JQ’s articles with great interest. In an attempt to get my head around some ideas, I translated some English words into other European languages.

    It seems the Romans distinguished between the state of someone (natural person or legal entity) having effective control over a thing and the will to keep it (“possessio”) and the legal status of ownership (“proprietas”). This distinction is reflected in some European languages. For example, “possessio” is translated into German as “Besitz” and “proprietas” is translated into “Eigentum”.

    Is it possible that Locke and subsequent properterians blurred the distinction to provide a bridge between the forceful acquisition of the Americas (take possession) and the introduction of English property law?

  8. Ivor
    September 30th, 2016 at 09:01 | #8

    Your property rights are those that are accepted and enforced by the society to which you belong.

    The justice or otherwise of a set of property rights can’t be assessed separately from that of the social structure of which it is a part.

    Yes and no.

    A bourgeois society will never allow just property rights. Telling people they belong to society and therefore “here-are-your-rights”, just suppresses gross injustice and leads to trouble further on.

    Human rights and forms of justice are prior to society. Society must determined by rights and justice – and not vice versa.

  9. Collin Street
    September 30th, 2016 at 09:32 | #9

    Is it possible that Locke and subsequent properterians blurred the distinction to provide a bridge between the forceful acquisition of the Americas (take possession) and the introduction of English property law?

    No: seisin is fundamentally possession, so it dates from the earliest days of english land-law.

  10. GrueBleen
    September 30th, 2016 at 09:56 | #10

    @Ivor
    Your #8

    What ? So “human rights and forms of justice” apply to isolated individuals, you reckon ? Or are families and tribes “society” ?

  11. GrueBleen
    September 30th, 2016 at 10:20 | #11

    @Ikonoclast
    Your #5

    Yeah, I’d never heard of such a thing as “adverse possession” until recently when I encountered two cases of it in my local area – both cases from a single ‘adverse possessor’.

    Somebody had managed to somehow extend their property on both sides by about 2 metres each side into what once had been their neighbour’s land – fenced in the ‘acquired’ land, and then waited until the ‘adverse possession’ time had expired and successfully claimed the ‘extensions’ under ‘adverse possession’ (which I know because the ‘adverse possessor’ had to post a public notice on the land stating the action taken).

    I was quite taken with the idea, but my neighbour’s houses are just a little too close to the side fences for me to be able to ‘re-fence’ them. But I guess that’s how you could do it: periodically replace your side fence, every time moving it a few more centimeters into their land – and especially if the block is sold and the new owners don’t actually bother to check the precise details of the title – and then exercise ‘adverse possession’.

  12. GrueBleen
    September 30th, 2016 at 10:23 | #12

    @Collin Street
    Your #9

    When exactly were “the earliest days of english land-law” d’you reckon ?

  13. Ernestine Gross
    September 30th, 2016 at 10:43 | #13

    It seems to me ‘adverse possession’, if successful, is a special case of lat. ‘possessio’ becoming lat. ‘proprietas’ by means of a legal document. Squatter laws may be another example.

  14. Ikonoclast
    September 30th, 2016 at 11:03 | #14

    Well, the Wikipedia shows a diversity in time spans needed for adverse possession in the different states of the USA. The case GrueBleen mentions is just the action of a lowlife thief.

    In modern society, adverse possession needs to be completely repealed. It’s easy to do. For example, in Australia, there should be about three freehold titles; private title, native title and crown title. All that is not first two, is the last. Also, adverse possession attempts of all forms should be illegal full stop end of story. No place for it in a modern society and a full world. Obviously, Antarctica is going to be a place of international dispute at some point.

    A sore point with me is northern hemisphere nations thinking they have rights all through the southern hemisphere with respect to fisheries and Antarctica. The Southern Hemisphere for the Southern Hemisphereians I say. I am actually half serious about this. The N.H. can rack off as far as I am concerned. 😉

  15. Tim Macknay
    September 30th, 2016 at 11:24 | #15

    @Ikonoclast

    Also, adverse possession attempts of all forms should be illegal full stop end of story. No place for it in a modern society and a full world.

    I’m curious as to the source of your hostility to the idea of adverse possession.

  16. Ivor
    September 30th, 2016 at 11:49 | #16

    GrueBleen :
    @Ivor
    Your #8
    What ? So “human rights and forms of justice” apply to isolated individuals, you reckon ? Or are families and tribes “society” ?

    I do not follow?

  17. Ivor
    September 30th, 2016 at 11:50 | #17

    GrueBleen :

    What ? So “human rights and forms of justice” apply to isolated individuals, you reckon ? Or are families and tribes “society” ?

    I do not follow?

  18. Collin Street
    September 30th, 2016 at 12:16 | #18

    When exactly were “the earliest days of english land-law” d’you reckon ?

    It’s pretty recognisable from about seven hundred years back; the earlier stuff I don’t know.

    It seems to me ‘adverse possession’, if successful, is a special case of lat. ‘possessio’ becoming lat. ‘proprietas’ by means of a legal document. Squatter laws may be another example.

    Similar in effect and motivation, but the mechanics and the historical origin is actually pretty different.

    I mean, first up, you don’t really own land in the english law, you just have a right to possess. Adverse possession originated as a time bar for recovery actions; since english-pattern land claims are transferred by deed, “I give you my rights”, a time-barred claim vanishes from the paperwork and is obviated, neither being recorded nor having any effect. Garbage-collected, in programmer jargon.

    With modern torrens title you need to actually remove the record of the old title to have the same effect, of course.

  19. Julie Thomas
    September 30th, 2016 at 13:14 | #19

    @Tim Macknay

    I think it is theft and sneaky and it is dishonest because the person who gains the property is taking advantage of someone who is less able to protect their property and being less able to protect one’s property does not mean the lesser abled person deserves to have less property???

  20. September 30th, 2016 at 13:17 | #20

    I feel like you are ending with a question, despite the following statement.

    “A system of property rights works better if the rights it creates tend to coincide with feelings of rightful possession on the part of both the owners and other members of society.”

    So, in your opinion, is Cliven Bundy wrong because the other members of society do not agree with his feelings of rightful possession? Or were you just meaning to point out that Locke on the subject of appropriation leads to conundrums?

  21. Ikonoclast
    September 30th, 2016 at 13:50 | #21

    @Tim Macknay

    Sure, I think I need to explore my own reasons for my “hostility to” or “rejection of” the moral validity of the idea and law(s) of adverse possession.

    First, I need to check if my target is “adverse possession” or my own ideas of it. A Cornell U. Law site says;

    “Adverse Possession

    Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

    The common law requirements

    The common law requirements have evolved over time, and the articulation of those requirements varies somewhat from jurisdiction to jurisdiction. Typically, adverse possession, in order to ripen into title, must be:

    (1) Continuous; this means continual possession by a single adverse possessor, or by successive adverse possessors so long as privity exists between them.

    (2) Hostile to the interests of the true owner; this is the adverse part of adverse possession.

    (3) Open and notorious, so as to put the true owner on notice that a trespasser is in possession.

    (4) Actual, so that the true owner has a cause of action for trespass, on which the true owner must act within the statute of limitations.

    (5) Exclusive, in order that there be no confusion as to who acquires title once the time has run.

    The statute of limitations

    A typical statute will require possession for 7 years, if under color of title, or 20 years, if not.

    A mnemonic may help with remembering the decisional and statutory elements of adverse possession; think of it as inchoate ownership which becomes choaTe [(i.e. continuous, hostile, open, actual, for the requisite period of Time, and exclusive). Decisional pieces are indicated in lowercase, statutory ones in uppercase.].

    Last updated in August 2016 by Joseph Szydlo.”

    The WikiHow “How to Obtain Adverse Possession in Australia” probably gives an idea of the lie of the land in Australia.

    After checking these, I can say I am indeed hostile and rejecting of any idea and law of adverse possession in the modern world.

    1. Most of the world’s land, except Antarctica, is already owned or held under our system(s) as private title, native title or crown land (the main categories).

    2. Where this is not the case, the rest ought to belong now to “Nature” and/or “The Crown” or its national sovereign equivalent. Nature needs preserves.

    3. In a relatively well ordered society, with land titles well recorded (as in Australia), there is no justification for adverse possession. Land belongs now, in the main, to the categories of private title, native title or crown land. Land and property neglected in a fashion to cause public nuisance, risk or detriment or with large unpaid rates or charges would be forfeit under law to the Crown under reasonable law for just compensation.

    Summary. Adverse possession is archaic law, be it any combination of common or legislated law. It is no longer appropriate to the modern world. As such it needs to be proscribed and all support for it struck out of law. The world and its lands, other than Antarctica and other arid, elevated and inhospitable zones, are largely occupied. Ownership is largely settled and what is left is perhaps best left for nature.

  22. Collin Street
    September 30th, 2016 at 13:58 | #22

    Somebody had managed to somehow extend their property on both sides by about 2 metres each side into what once had been their neighbour’s land – fenced in the ‘acquired’ land, and then waited until the ‘adverse possession’ time had expired and successfully claimed the ‘extensions’ under ‘adverse possession’ (which I know because the ‘adverse possessor’ had to post a public notice on the land stating the action taken).

    This probably shouldn’t actually have worked. Secretive or concealled actions can’t form the basis of an adverse-possession claim: the occupation has to be public, such that it can be noticed and [if the original landholder wishes] acted upon. “Moving fences slowly so that people don’t notice” doesn’t exactly count.

  23. GrueBleen
    September 30th, 2016 at 14:18 | #23

    @Collin Street
    Your #21

    I have no knowledge of how the fences were moved since that had happened long before the ‘Adverse Possession’ claim. All I can say is that by the time the ‘Notice of Adverse Possession’ documents were posted (first on one side then a week or two later on the other side), the ‘enclosure’ of the AP land had clearly occurred. The funny thing is, it looked kinda obvious too.

    But the AP claims obviously succeeded, because the fences are still where they were when I first noticed.

  24. GrueBleen
    September 30th, 2016 at 14:26 | #24

    @Ivor
    Your #16

    You said: “Human rights and forms of justice are prior to society.” But I say that human beings have never been “prior to society” if you count families and/or tribes as ‘society’ – which clearly I do. In short, there is absolutely nothing whatsoever about humans that ever was “prior to society”.

    But if there had been, then “human rights and forms of justice” would have had to apply to isolated individuals, yes ? And how can that be ?

  25. Ikonoclast
    September 30th, 2016 at 14:30 | #25

    @GrueBleen

    Nobody would want to do that to some old mates I know. The whole fence would come out in the dead of night and probably be erected across their driveway (if a large block) or simply disappear. If the perpetrator(s) had guard dogs they would be found sleeping a happy, deep vet’s-sedative type sleep.

  26. Moz of Yarramulla
    September 30th, 2016 at 14:49 | #26

    @Ikonoclast

    adverse possession attempts of all forms should be illegal full stop end of story. No place for it in a modern society and a full world.

    That’s exactly where it’s most needed. Adverse possession is all about abandoned property, especially and usually specifically land. If a squatter can live in “your” house for a decade without you noticing, I don’t think you can reasonably claim to own it. Not to mention that Torrens Title is built on the idea of adverse possession – the state decides, using methods it decrees appropriate, who owns the land.

    The literal edge cases of boundary disputes I am kind of torn. I can’t see how those cases can occur without illegal actions by the person acquiring the land, because it’s very simple for the neighbour to show that there’s a problem at any time. I’m really struggling with the idea that someone would pay a few years income for a house and not have the property surveyed. But at the same time, I’m aware that I don’t have all the information about the case described and there is obviously more to it than described. Someone may have “just accepted” loss of land rather than endure an open fight with an obnoxious neighbour, and likely did not realise that failure to challenge the fence shifting could lead to loss of title.

    But that may be because I am unusually aware of how often fences are just flatly in the wrong place because I’ve seen a few surveys and hardly any of them match what’s on the ground precisely to what’s on the title.

    In rural areas it is much worse, since there are many areas without a high density of fixed landmarks, and it’s therefore easy to move “boundary” fences or markers without people noticing.

  27. GrueBleen
    September 30th, 2016 at 15:02 | #27

    @Collin Street
    Your #17

    “English law” … “from 700 years ago”

    Hmm. Well that’s quite recent, really; but well after the Norman Conquest, so really it would be ‘Norman Law’, woudn’t it ? That is, not law that originated with Angles, Saxons or Jutes.

    Indeed, if we count the reign of Cnut, that would make it Denmark-Norway law, followed by shortly afterwards by Normanity.

  28. Collin Street
    September 30th, 2016 at 15:05 | #28

    I have no knowledge of how the fences were moved

    Then… don’t comment on the merits of the case?

    @ikon: It’s actually not that hard to think of situations where adverse possession, or some essentially-equivalent time bar on recovery actions, comes into play.

    For example. One of the situations that adverse possession deals with is the case of two people who accidently got the paperwork for each other’s plots [or built on the plot “next door”; same situation, different focus]. You could fix this by swapping titles… but sometimes one party sees an opportunity to profit, and the situation can’t be resolved amicably / by consent.

  29. GrueBleen
    September 30th, 2016 at 15:12 | #29

    @Ikonoclast
    Your #24

    🙂 Yeah, in this day and age, everybody needs some mates like that.

    The thing is, I’ve been in my current house since about 1982, but I didn’t ever notice stuff like that until I started taking walks around the neighbourhood. The fence shifting had obviously occurred quite a while ago – maybe around or even bdefore 1982, I couldn’t tell. But shifted they had been – which was just a tad obvious after one knew there was something to look for.

    But on both sides ? Tres mysterieux.

  30. Ikonoclast
    September 30th, 2016 at 15:32 | #30

    @Moz of Yarramulla

    I disagree. If private land is neglected, just like a car on the side of the road, advise the authorities, police or council, as appropriate. Why do people think “Oh gee, I can pinch a spread of land from some unobservant person?” Is it okay to pinch an unobserved handbag or wallet in a restaurant? No. Exact same principle. It’s no different. Theft is theft is theft is theft. If land is neglected then let it go back to the Council or Crown. It becomes the people’s land again, not one opportunist thief’s private land. The latter is typical grasping capitalist-rentier behaviour if I ever saw it.

    These days there is absolutely no excuse. Everything can be surveyed to the centimeter by satellite information and cadastral surveying. Sure, there might be historical grey areas to clean up. Again, I don’t see why land-grasping opportunists should get the land rather than council or the Crown who then hold land in common for all the people and deal with it as democratically elected bodies answerable to the people.

  31. Tim Macknay
    September 30th, 2016 at 15:45 | #31

    @Julie Thomas
    In the circumstances you describe, a claim of adverse possession would certainly be unjust. But I don’t think it necessarily follows that all, or even many, cases of adverse possession fit your example.

  32. GrueBleen
    September 30th, 2016 at 15:48 | #32

    @Collin Street
    Your #27

    Excellent advice, Coll. Now if you could just point out to me exactly where I commented “on the merits of the case”, I’ll gladly redact. Now remember that’s ‘on the merits” not on the mechanics.

  33. Tim Macknay
    September 30th, 2016 at 15:50 | #33

    For those interested, there’s a pretty good article (albeit a little on the old side – 2006) here that gives an overview of the contemporary uses of, and problems with, adverse possession laws and related legal concepts.

  34. Ikonoclast
    September 30th, 2016 at 15:54 | #34

    @Tim Macknay

    As per my posts 20 and 29, I think I have comprehensively demonstrated it has no place in the modern age and no place in a social democracy. I am amazed anyone can defend it and I am at a loss to think of a case where it would be sensible or just law in the modern context.

  35. Collin Street
    September 30th, 2016 at 15:56 | #35

    Now if you could just point out to me exactly where I commented “on the merits of the case”,

    Look, you’re insisting that I call the law applicable in the kingdom of england “norman law”, even though it applied in the kingdom of england and not the duchy of normandy, even though it’s for a time fifty years after the kings of england had lost the duchy of normandy, even though at that point the kingdom of england had existed for twice as long as a “norman” polity than as a saxon one.

    I’m going to suggest that you might not want to be too picky, and that you pay more attention to your possibility of error.

  36. Moz of Yarramulla
    September 30th, 2016 at 16:36 | #36

    @Ikonoclast

    Everything can be surveyed to the centimeter by satellite information and cadastral surveying.

    There is a gulf between “can” and “can reasonably” be done. You’re expecting councils to constantly surveil their subjects to make sure no property is unattended, when they are not funded for that and most struggle with the tension between doing their legislated jobs and the pressure from the electorate not to. Councils habitually fail to act on substantial illegal dwellings in densely populated urban areas, I think it’s grossly unreasonable to expect them to police centimetre-scale shifts in boundary fences, and even less reasonable to cede land to the crown when that happens.

    I disagree that “theft is theft is theft” is in any way compatible with either British or Australian law. As I alluded above, one major reason to have Torrens Title is that it turns “terror nullis” into “my house” very quickly and easily.

    It becomes the people’s land again, not one opportunist thief’s private land.

    That is one possible consequence to your idea, yes. In practice I suspect it would be used primarily to confiscate land from indigenous people and other victims of state misbehaviour (jail sentences longer than the statue would be interesting – look at the civil forfeiture scam in the US, for one example of “legal” government taking leading to corruption).

  37. Moz of Yarramulla
    September 30th, 2016 at 16:42 | #37

    Tim Macknay :
    For those interested, there’s a pretty good articlehere

    Thanks Tim, that’s very helpful. I hadn’t thought about the problems of off-title transfers, but that type of uncontested transition is a case for possession laws that I suspect even Ikonoclast would accept. The alternative, of that land being forfeit to the crown, seems grossly unfair.

  38. Tim Macknay
    September 30th, 2016 at 16:54 | #38

    @Ikonoclast

    As per my posts 20 and 29, I think I have comprehensively demonstrated it has no place in the modern age and no place in a social democracy. I am amazed anyone can defend it and I am at a loss to think of a case where it would be sensible or just law in the modern context.

    OK then. You certainty appear to think so. ‘Comprehensively demonstrated’ might be just a slight overstatement though. 😉

  39. Ikonoclast
    September 30th, 2016 at 17:13 | #39

    “Terra nullius is a Latin expression deriving from Roman law meaning “nobody’s land”, which is used in international law to describe territory which has never been subject to the sovereignty of any state.” (Wikipedia) However, the whole of Australia is subject to the sovereignty of the Commonwealth of Australia (now just called Australia). There is no terra nullius now on the Australian continent.

    No surveillance is necessary. Have properties properly surveyed by modern methods when sold. Where older boundaries exist and where newer boundaries exist for that matter, wait for a dispute to arise and then settle it via a Land Boundaries Tribunal or similar (State or Federal). Set one up if necessary. Some simple provisions would suffice. Namely (as an example);

    “It is the responsibility of the person, persons or agents building a structure or fence, wall or boundary structure of any kind to ensure at their own cost that said structures are built within the property boundary and that fences etc. are built on the boundary or within an allowable limit of error as per the locality table (see tables at Appendix n). Any structure, fence etc. within these bounds and provisions is legal provided it meets all other council building regulations and all applicable state law and Federal law. Any illegal structure under this provision shall be removed at the owner’s cost by order. There will be no expiry on possession or title of land, nor any obtaining of possession or title to land by any operations or applications of adverse possession or any like law or argument.

    Lands notified as unoccupied, neglected or hazardous to other landholders, the public or to the ecological health of the area may be forfeited to the state after due process, investigation and determination. See section X blah, blah, blah.”

    This sort of thing is very easy to deal with, with clarity of thought and political will. If people won’t do this or won’t agree to it, it’s because they see a self-interest advantage in the status quo and they concomitantly care little or nothing about the public interest and genuine equality.

  40. Collin Street
    September 30th, 2016 at 17:16 | #40

    wait for a dispute to arise and then settle it via a Land Boundaries Tribunal or similar (State or Federal).

    How do you envisage your “land boundaries tribunal” process working when you’ve just abolished adverse possession and thereby the procedure whereby possessors become owners? What judgements will your tribunal be able to hand down?

  41. Tim Macknay
    September 30th, 2016 at 17:37 | #41

    Gotta love Dunning-Kruger on a Friday. 🙂

  42. GrueBleen
    September 30th, 2016 at 18:18 | #42

    @Collin Street
    Your #34

    What was that you said about Dunning-Kruger on a Friday, Tim ?

    Anyway, now that you’ve got your little temper tantrum out of the way, Coll, could you please explain to me how a question about whether or not I commented on “the merits of the case” of Adverse Possession in my neighbourhood has somehow turned into me “insisting” on you calling it “Norman law” when it applies in the “kingdom of England”.

    Now if you could just point out to me exactly where I “insisted” on anything, I’d be most grateful. Though I thank you for the advice that I should pay more attention to possibility of error – as you’ve obviously noted, I make so vanishingly few errors that I do need timely reminders.

    Now, on the basis that one good turn deserves another I think I should seriously counsel you to improve your reading comprehension skills. But you won’t achieve that overnight, so I’ll help you out here: I was trying to grasp the origins of the so-called “English Law” mate. Otherwise, why did I mention Cnut ? He isn’t Norman you know – err, you did know that, didn’t you ?

    Anyway, the point of my curiousity is whether the “English law” you cite was of Anglo-Saxon-Jute origin or of Norman – ie Angevin – origin, or even, a faint possibility, of Danish-Norwegion origin or perhaps some kind of tapestry of all of those. Do you happen to know ?

  43. Ikonoclast
    September 30th, 2016 at 18:36 | #43

    @Collin Street

    Your comment makes no sense. Let’s look at the possibilities.

    (A) A boundary dispute between two neighbours where both are immediately or very soon aware of a matter of dispute and of being in a disputation. One or both take it to the tribunal.

    (B) A neighbour encroaches on another property. The second property owner discovers it at a later date (no time limit remember) and takes it to the Tribunal.

    (C) A neighbour encroaches on another property. A third party (which might even be council, state or federal officers but does not need to be) discovers or has reason to suspect an encroachment and takes it to the Tribunal who comission an investigation.

    (D) A neighbour encroaches on another property. It is not discovered for an indeterminate time. He/she gets away with it in practice but can never become a legal owner. In time, if discovered, structures must be torn down or surrendered and this property reverts to an original owner, or descendent of same and failing that is surrendered to the crown.

    Nobody above has yet argued a cogent case for the adverse possession law. If they did I might take the discussion seriously.

  44. Ikonoclast
    September 30th, 2016 at 18:41 | #44

    @Tim Macknay

    Do you refer to the adverse possession debate? What is your position? I consider it one of the most blatantly ludicrous and outdated laws I have come across in a long while but then I have made my position obvious enough.

  45. Tim Macknay
    September 30th, 2016 at 18:43 | #45

    @Ikonoclast
    Your posts are rather lengthy, considering you’re ‘not taking the discussion seriously’. 😉

  46. Tim Macknay
    September 30th, 2016 at 18:58 | #46

    @Ikonoclast

    Do you refer to the adverse possession debate? What is your position?

    My ‘position’ is that adverse possession laws, in various forms, remain useful for the resolution of certain limited kinds of issues concerning property ownership, particularly where there is confusion or ambiguity over ownership or mistaken beliefs about ownership. That is the reason they have not been completely abolished, although they have been truncated and modified to varying degrees in different jurisdictions. I base this position on the views of legal scholars and law reform bodies who have examined the question of adverse possession law in various jurisdictions.

  47. Collin Street
    September 30th, 2016 at 19:55 | #47

    Your comment makes no sense.

    OK.

    We want our records of land ownership to align with possession-on-the-ground. Discrepancies will, inevitably, arise: we can fix these in two ways, either shifting possession to align with our records [eviction, &c], or we can shift our records to align with possession [adverse possession].

    If you abolish adverse possession, you abolish the mechanism we use to shift records to follow possession, leaving us only with the mechanism of shifting possession to follow records. Perhaps you’d propose a new mechanism to do this, but you haven’t yet, if you did it’d look pretty similar to adverse possession anyway, and you really don’t seem to be thinking along those lines [now would very much be the time to tell me, btw].

    So. We can investigate. But what, exactly, do you think the investigation will investigate? You’re ruling out the possibility of resolving the dispute by granting title to a possessor: the only thing, then, they need to know is who the records say the owner is, and all you need to do to find that is to look at the records.

    If there’s only one decision they can make, then, really, nothing they might investigate will affect what their decision will be.

    What do you see them them doing?

  48. Collin Street
    September 30th, 2016 at 20:02 | #48

    Nobody above has yet argued a cogent case for the adverse possession law.

    Owing to an administrative error by a developer, two houses on a new subdivision get their paperwork swapped. Fifty years later, one house is in the line of a freeway construction, and the error is discovered.

  49. Ikonoclast
    September 30th, 2016 at 20:59 | #49

    Arguments have moved away from the adverse possession I had in mind. At least in the USA; “Adverse possession is a legal doctrine that permits a trespasser who occupies the real property of another in an open, notorious, visible, continuous, and adverse manner for a specified period of time to obtain legal record title to such property.”

    “In most states, the law permits even the knowing trespasser (or so-called bad-faith adverse possessor) to take advantage of this doctrine.”

    I had in mind this deliberate, bad faith possession and that indeed should be expunged. The case Colin gives above relates to inadvertent and good faith possession. So yes, as Tim and Colin say there may be a limited argument for it in that case. However, the person who comes off badly (in this case the one caught in the path of the freeway) should receive just compensation and damages awarded against the Crown or State which made the error.

  50. Collin Street
    September 30th, 2016 at 21:48 | #50

    The case Colin gives above relates to inadvertent and good faith possession.

    You’ll note I wrote about exactly the same damned situation at three o’clock. Go and check.

    Why did it take you five hours to read what I was writing?

    People told you it was more complex than you thought. People told you that there were situations where adverse possession was the best approach. People gave you details of some of these situations, even.

    And you still kept arguing in blanket terms against something it now turns out you never really understood. Why did you do this? Why did you not stop and check?

  51. Ernestine Gross
    September 30th, 2016 at 23:44 | #51

    “Why did you do this? Why did you not stop and check?”

    I suppose it is an error – like the hypothetical developer who messed up the paperwork you had described. Why did the developer not stop and check? Shouldn’t the developer be held responsible and shouldn’t the law allow the developer to be held responsible by abolishing rediculously short limitation periods? (The limitation period should be defined with respect to the length of time it has taken to discover a mistake – a variable in other words.)

    It seems to me JQ has a point when he examines questions of property rights within a larger framework then current legal procedures. Incidentally, game theorists are also busy examining the stated objectives of laws (“to ensure”) and legal procedures from a mechanism design perspective with interesting results.

  52. Oliver
    September 30th, 2016 at 23:47 | #52

    depriving thief A

    should probable read depriving thief B

  53. Tim Macknay
    September 30th, 2016 at 23:50 | #53

    @Ikonoclast
    Ikon, even the case against ‘bad faith’ adverse possession isn’t nearly as clear-cut as you think it is. Consider a scenario in which the property is a house in suburban Detroit, the ‘bad-faith trespasser’ is a family who lost their livelihoods due to the offshoring of US manufacturing and the economic downturn, and the owner is the bank who foreclosed on them, but has no interest in selling or maintaining the property because it has no market value. Under adverse possession, the family could eventually regain title to the house, but without it the bank could throw them out if it decided to sell, and gain a value windfall from their continued maintenance of the property.

  54. Tim Macknay
    October 1st, 2016 at 00:09 | #54

    @Ernestine Gross
    In that scenario, an adverse possession claim is a much simpler and more straightforward solution than trying to sue the developer.

    More broadly, there’s an ongoing problem with holding property developers responsible for longer term problems arising from developments, because typically company structures are set up for the purposes of specific projects, then wound up once sales are complete. It requires more than changes to limitation periods to rectify.

  55. Ikonoclast
    October 1st, 2016 at 06:16 | #55

    @Collin Street

    I thought the substantive issue was bad faith adverse possession. It was more directly related to the original topic and to the example that GrueBleen had given. There is the issue, that even in the scenario, you raise the application of adverse possession will leave an aggrieved party. The owner who loses the house to the freeway might feel aggrieved, “After all I should have had that other house.” Adverse possession used in this way is a legal expedient, not a guarantee of real justice or redress to all parties. But I agree, it could be even more unjust to throw out the other person.

    I read an article, lost the link now, where it was held that adverse possession “calmed” title and helped the market. The meaning was that the idea of adverse possession being available for redress for stuff-ups (swaps or boundary faults) helps in its own little way to make title secure and support its value. It’s an interesting argument but I am not sure I agree. Most home buyers, like I was for many years, I am sure are not aware of this technical nuance. Maybe commercial and developer buyers are.

    I often get the sense that arguments for archaic laws based on odd cases and flimsy justifications, are pretext arguments so that people can maintain such laws for other purposes. There are the pretexts for keeping the archaic law (odd cases) and then the real reasons for keeping the law (it suits capitalists and rentiers).

  56. Ikonoclast
    October 1st, 2016 at 06:22 | #56

    @Tim Macknay

    I was waiting for someone to make this argument. The capitalist system, or at least an extreme laissez faire version of it, creates this impoverished family’s predicament. A dodgy law for redress of a wrong done by a dodgy system! It’s a very poor argument, IMO. Absurd systems like capitalism create chains of further abuses and absurdities.

  57. Ikonoclast
    October 1st, 2016 at 06:54 | #57

    Here’s a paper which substantially supports my case that adverse possession is archaic law.

    http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=7F4D37F91A93E40A70877FF216268C93?doi=10.1.1.611.8561&rep=rep1&type=pdf

    Title: A Critique of the Doctrine of Adverse Possession – Hong Yin Teo

    The author notes;

    “For adverse possession to be morally justified it must be shown that even with recent legislative developments, adverse possession is still the ‘better’ legal remedy.”

    The author could have added the issue of modern technological developments which also help secure title.

    Also, pay attention to the argument ending with;

    “Adverse possession does not, therefore, make records more certain. On the contrary, it is arguably one of the primary reasons why records are inaccurate today.”

    In other words, adverse possession creates messes in this arena rather than solves them.

    It’s worth reading the whole article. It strongly supports my case that adverse possession is archaic law and bad law. I rest my case. Certain parties may now feel free reexamine their angry diatribes against me and/or reexamine where any concern about Dunning-Kruger effects should truly rest.

  58. Julie Thomas
    October 1st, 2016 at 07:36 | #58

    @Tim Macknay

    “In the circumstances you describe, a claim of adverse possession would certainly be unjust. But I don’t think it necessarily follows that all, or even many, cases of adverse possession fit your example.”

    But those circumstances – two people in dispute about who ‘owns’ something – is the starting point of constructing laws that are designed to determine on the basis of an accurate understanding of how humans behave in the contexts in which a dispute about how to divide and/or allocate property.

    And even before we make laws about how to allocate property between competing interests don’t we need to all be on the same page about what property is alienable and what is not?

  59. GrueBleen
    October 1st, 2016 at 08:30 | #59

    @Tim Macknay
    Your #45

    Yeah, Ikono is a victim of Kuhnian “pre-paradigm science”. Everything must be explained right from the beginning every time something is discussed. 🙂

  60. Julie Thomas
    October 1st, 2016 at 08:46 | #60

    @GrueBleen

    That is a good thing in my way of trying to understand how we got to where we are now. You know maybe we can’t get where we or the ‘we’ I think of when I imagine people want to be by starting from western ways of thinking.

    Every other discussion could be interesting but is not relevant to the problem of understanding ourselves and our desires and how to negate the desires that are not functional if our aim is to construct societies that can provide the well being that all humans need to give of their best to their group.

    Kuhn was only able to imagine paradigm shifts because he was not captured by the hegemony of the white man – who thinks he is the high point of evolution – grand narrative.

  61. Ernestine Gross
    October 1st, 2016 at 08:55 | #61

    @Tim Macknay

    True, it requires more than extending the limitation period in this case. The legal entity, the company with limited liability, is also a problem.

  62. GrueBleen
    October 1st, 2016 at 09:06 | #62

    @Ernestine Gross
    Your #51

    Every time “we” get to a state such as this, I find it quite amusing, simply because we are in the universe of “making it up”. Every little thing in this debate is basically something that has just been “made up” by varius people in various places at various times. Values – such as rights and duties – are just ideas some person or group has made up and propagated – you won’t find rights and duties in the equations of physics or the formulae of biochemistry.

    Then we go on and make up “laws” – that we’re supposed to obey even when nobody is ever sure what the consequences of our growing complex of laws is.

    But what I do find is that Goedel’s Theorem applies: our ‘system of morality’ and our ‘complex of laws’ behave just like the complex axiom sets – eg numbers and arithmetic – that Goedel found to be ineluctably incomplete or inconsistent – or both. And then, just like Goedel’s axiom systems, we have to make a ‘meta system’ – known as courts and judges – to try to sort out the omissions and contradictions we have created.

    Such fun. Have you ever played ‘Nomic’ [ http://legacy.earlham.edu/~peters/nomic.htm ] A fine addition to Game Theory ?

  63. GrueBleen
    October 1st, 2016 at 09:23 | #63

    @Julie Thomas
    Your #60

    But what if our aim isn’t “to construct societies that can provide the well being that all humans need” and what if we couldn’t care less about enabling people to “give of their best to their group” ? So far as I can see, there’s lots who think that way.

    But I’ll bite, what are these “western ways of thinking” against which you preach ? Or did you perhaps mean that we really should use “western ways of thinking”, but come to different conclusions – that you, perhaps would prefer ? But if we are not to use these “western ways”, whose ways are we to use ? And have we any reason to believe these “non-western ways” will produce any better result ? That is a result that I think is better, not just one that appeals to you.

  64. Tim Macknay
    October 1st, 2016 at 09:24 | #64

    @Ikonoclast
    The thing is Ikon, now you’re talking about the whole system, not just a specific legal notion. Which is all well and good, but a different discussion entirely.

  65. Tim Macknay
    October 1st, 2016 at 09:40 | #65

    @Julie Thomas
    Well Julie, that seems to be a broader and different discussion from the narrow one about whether or not adverse possession is unjust.

  66. Tim Macknay
    October 1st, 2016 at 09:58 | #66

    @Ikonoclast
    But you’re right though, that the fact that ‘bad faith’ adverse possession can lead to just outcomes in particularly straitened circumstances isn’t a particularly good argument for the concept as a whole. Which, I suspect, is why it isn’t available in most jurisdictions. I think you’re probably right that the stronger belief in Laisse-faire in the USA is why it persists there to a greater degree.

  67. Tim Macknay
    October 1st, 2016 at 10:01 | #67

    @Julie Thomas
    I certainly agree that it can be useful to examine our notions of property in a philosophical sense. Which is what the OP is doing, of course.

  68. Collin Street
    October 1st, 2016 at 10:42 | #68

    I thought the substantive issue was bad faith adverse possession.

    You didn’t. You couldn’t have thought that, because you didn’t distinguish good-faith and bad-faith adverse possession and didn’t realise that good-faith adverse possession was a thing that might happen. [despite people pointing this out to you].

    Or, more concisely, you fucked up.

    You also wasted my time and Tim’s. I don’t expect an apology — you certainly should apologise, but I don’t expect you to — but, right now for free [or sunk cost, at least] you’ve run into a really good opportunity to look at how you react when you’ve made conceptual mistakes, so as you can hopefully recognise that “I am making a conceptual mistake” feeling the next time you do this and you save others five hours.

    Now. I’m going to drop this. I strongly suggest that you not respond, unless it is to apologise; there is nothing you can say that will be useful other than to apologise. Have I mentioned that I don’t actually expect you to apologise? I’m grading on a curve, here; you don’t have to be perfect, you just have to improve bit-by-bit.

    Have a look at stages of grief: right now, you’re on the “denial” stage of grief over “you fucked up”. It’s been long enough, you should be able to move past that now.

  69. Julie Thomas
    October 1st, 2016 at 11:06 | #69

    @GrueBleen

    “But what if our aim isn’t “to construct societies that can provide the well being that all humans need” and what if we couldn’t care less about enabling people to “give of their best to their group” ? So far as I can see, there’s lots who think that way.”

    I think that the economy/politics/society we have now is the result of not specifically aiming to build human friendly communities and a misguided misinformed disdain for the people who are unable to live up the requirements of the bourgeous doesn’t exist society that Thatcher so succinctly characterised and that you so reflectively want to defend.

    Why don’t ‘you’ want to build something important that will make the world a better place for your children and in return they look after you? You like the way things are for you and you don’t want to challenge the truths that have led to your successful negotiation of the society that has provided you with what you needed to succeed.

    yes there are lots who think that way but they don’t have any sort of scientific foundation on which to base those thoughts and impulses; they have been led astray by the Murdoch media and other assorted capitalist institutions who have used propaganda (and psychology) to create stupid ignorant angry envious people.

    I want all types of human thinking patterns to be specifically and explicitly aimed toward that ‘horizon value’; humans are not born to be individuals who achieve success through taking advantage of other less able people, we are born social animals and we can all have the dignity and freedom that comes from being a valued part of one’s community if we accept that as what it means to be human.

    “But I’ll bite, what are these “western ways of thinking” against which you preach ? Or did you perhaps mean that we really should use “western ways of thinking”, but come to different conclusions – that you, perhaps would prefer ? But if we are not to use these “western ways”, whose ways are we to use ? And have we any reason to believe these “non-western ways” will produce any better result ? That is a result that I think is better, not just one that appeals to you.”

    Why is it ‘biting’ to respond with a question that elicits more information if that is what you want? Am I really preaching or is that how you interpret what I am doing? Can you phone a friend?

    I don’t think I have that many conclusions about specific things; the certainties I have are about the process being the important thing to consider, not the product. It’s the way of doing things that seems to me to be the truest way of determining the truth of any idea or truth, not the product. If the process has integrity then the product will also have integrity and be a ‘good’ thing, is one ‘truth’ that I can see is working for me to build a good community around me for my children and grandchildren.

    Western ways that are only one way of conceptualising how things work? Reductionist thinking.

  70. Julie Thomas
    October 1st, 2016 at 11:07 | #70

    @Tim Macknay

    Yep. Should I apologise? 🙂

  71. Tim Macknay
    October 1st, 2016 at 11:49 | #71

    @Julie Thomas
    Not at all! 🙂

  72. Ikonoclast
    October 1st, 2016 at 12:11 | #72

    @Tim Macknay

    That is the whole point. It is a whole-of-system argument. The entirety of the common law notion of adverse possession is now, in the modern era, archaic law and bad law; superseded in moral terms, legal-administrative terms (Torrens system) and technological terms (cadestral surveying, comprehensive database records and so on). The paper I linked to conclusively demonstrated this, I would suggest in the view of any person actually convinced by clear reasoning and deductive logic.

    But of course, I get to cop the jibes; “Dunning-Kruger effects”, “victim of Kuhnian “pre-paradigm science”” and “People told you it was more complex than you thought.”

    Then I produce a well argued paper which basically sinks the arguments of all three people tossing the jibes at me. Now I wonder who is suffering “Dunning-Kruger”, being victims of improperly examined positions and not realising that the complexities actually sink their arguments, not mine. Will one of you three who started on the personal jibes be big enough to admit to being clearly and comprehensively refuted in this argument? I doubt it.

    There are a lot of assumptions here that because I espouse what are often unorthodox positions that the default assumption must be that I am always wrong. Then it becomes a group behaviour thing. The conservative gang attacks the unorthodox thinker. The thing about gang behaviour is that “nice” people do it too. They just don’t realise they do it. The outsider, the unorthodox thinker is always attacked. Of course, if you don’t have enough analytical ability and strengthen of character to stand outside the orthodox gang ethos of this society, then you just won’t get it.

    Finally, note that I am not climate science denier nor a denier of the value of solar power (after being convinced by changing facts in the later case) for example. So I am not simply a standard derp and cannot reasonably be accused of that. I think it’s more the case that I am often unimpressed but conventional and orthodox “wisdom” – I mean in non-science matters – and thus I actually question everything else and make efforts to logically analyse it through. Pity a few more here didn’t do that and instead of prematurely making snarks that don’t hold up.

  73. may
    October 1st, 2016 at 13:38 | #73

    maybe possibly this is a form of homesteading?

    https://www.sierraclub.org/trade/mapping-isds

    check out the yellow bits.

  74. Ikonoclast
    October 1st, 2016 at 16:29 | #74

    Apologies to all my return flame above. I hold to me substantive, objective points but the flame was uncalled for. I will take at least a short holiday from blogging and maybe a long one.

  75. Ikonoclast
    October 1st, 2016 at 16:30 | #75

    Apologies to all for my return flame above. I hold to the actual substantive, objective points I made but the flame tirade was uncalled for. I will take at least a short holiday from blogging and maybe a long one. Cheers.

  76. GrueBleen
    October 2nd, 2016 at 03:16 | #76

    @Ikonoclast
    Your #73 and #74

    Now don’t do that, Ikono – take a long holiday from blogging – I’ll miss you.

    I was just thinking the other day when I read an old thread that there’s been quite a few commenters that seem to have dropped out over the years – haven’t seen anything from Fran Barlow for quite a while, for instance. Didn’t always agree with her, but she was mostly good to read.

    And I don’t always agree with you either, but I think I have mentioned a couple of times that I enjoy reading you – all of it, despite your Kuhnian pre-paradigm habit of covering everything in great detail.

    Perhaps I should tell you – in case it helps at all – my view, viz: I don’t know anybody who comments on this (or any other) blog, I haven’t personally met any in the flesh (so to speak), So, very simply, I don’t have any kind of emotional response (well other than occasional amusement) to what anybody writes in here. Nobody here is of enough importance for me to have emotions about.

    Enjoy your holiday.

  77. paul walter
    October 2nd, 2016 at 09:16 | #77

    Ikon, you are the Alan Border of “John Quiggin”. They bombarded you with specious arguments, all of which you calmly dealt with. They tried to shoot the messenger, but I think the notion that adults, in their right mind, could have anything but suspicion of the worst of the adverse possession doctrine have well advanced the digging of their own grave.

    De-enclose, redeem the commons. Understand where the theft has come from.

  78. Ikonoclast
    October 2nd, 2016 at 10:21 | #78

    @paul walter

    I was substantively right in the material matter IMO. It took a little while and few wobbles for me to demonstrate it and to enlist the reference help. The law is not a field of my expertise after all. But I shouldn’t have lost my cool and I shouldn’t been excessively combative early in the piece. Until I can do better I shan’t blog much I don’t think.

  79. Ikonoclast
    October 2nd, 2016 at 12:26 | #79

    @paul walter

    Oh, I get it… at last. You were calling me Captain Cranky. 😉

  80. paul walter
    October 2nd, 2016 at 17:51 | #80

    Ikonoclast, you must know me well enough by now. I am no Einstein, but I can follow basic current affairs at a thread and beleive I can with effort separate specious arguments from more substantial ones.

    Which is not to say you can’t be right sometimes also (ducks).

  81. Ernestine Gross
    October 2nd, 2016 at 20:27 | #81

    @GrueBleen

    Your 62.

    I am busy playing Nomic – what a gift for the long Labour Day weekend in NSW. Thank you. (Goedel’s theorems – too difficult for me. Indeed moral rules don’t grow on trees but I am greatful for traffic rules.)

  82. BilB
    October 2nd, 2016 at 20:42 | #82

    I haven’t read through the entire discussion but I have something to add in the form of an anecdote. I was standing in a circle of “friends” at a pub holding a ten dollar note while discussing a shout. The person next to me snatched the note from my hand and immediately handed it to the person on their other side saying “here is that ten dollars I owe you”. That person did the same, and so on till the last person on my other side put the ten dollars in their pocket. I got the ten dollars back of course and the shout was had, but what if the last person conducted the shout. The purpose of the expenditure would be achieved, a series of debt obligations met, and the only loss would be the transfer for performing the shout from one person to another. But that becomes a real loss if the obligation to deliver the next shout fell upon me immediately after. However if the shout obligation rotated in the other direction then my loss would become marginal.

    This anecdote has a very real community connection in such circles as barnraisings.

  83. Ikonoclast
    October 3rd, 2016 at 04:42 | #83

    @paul walter

    I was joking of course in my last post. I mis-remembered anyway. Allan Border was nicknamed Captain Grumpy not Captain Cranky. Come to think of it, I’ve been called grumpy recently on this blog but not by you. 🙂

    This is me taking a “holiday” by not posting anything serious.

  84. Tim Macknay
    October 3rd, 2016 at 10:54 | #84

    @Ikonoclast
    I get back from a relaxing weekend in the country, and this is what is waiting for me… 😉

    Then I produce a well argued paper which basically sinks the arguments of all three people tossing the jibes at me. Now I wonder who is suffering “Dunning-Kruger”, being victims of improperly examined positions and not realising that the complexities actually sink their arguments, not mine.

    Dude, you cited an undergraduate essay. And that after ignoring the 2006 paper I linked to earlier, because you thought you had “comprehensively demonstrated” that the concept was entirely obsolete. Said “comprehensive demonstration” consisting of nothing more than a vehement assertion, with absolutely no argument whatsoever. I am trying to avoid quoting The Princess Bride here.

    There are a lot of assumptions here that because I espouse what are often unorthodox positions that the default assumption must be that I am always wrong.

    I bear some of the blame for the argument on this thread, as it was me who asked you to explain why you had such a strong opinion about the law of adverse possession. I asked that question because I was surprised that you would have such a strong, absolute position on a relatively obscure concept of limited importance, not because you were being ‘unorthodox’. I admit that I suspected that you didn’t understand much about the concept and had reacted that way because you were offended by the ‘vibe’ of it.

    I was also surprised when you were so dismissive of my pointing out that the adverse possession doctrine, even in its ‘bad faith’ form actually serves a positive function, in social justice terms, in the current USA. I recognised that it wasn’t a particularly strong argument as an overall philosophical defence of the concept, but that wasn’t what I was trying to do of course.

    The truth is, your view is hardly an ‘unorthodox’ position. Concerns about the moral implications of adverse position have been quite widespread, and are the reasons why the doctrine has been examined by different law reform commissions and has been modified in most jurisdictions. Those bodies have generally found that the doctrine has genuine uses, which is why it has not been completely abolished. As I explained previously. The undergraduate essay you cited takes a fairly superficial approach to the current functions played by adverse possession doctrine, which is only to be expected, because it’s an undergraduate essay. I wouldn’t expect you to be able tell that of course, because you don’t really know what you’re reading.

    To be perfectly blunt, the reason I referred to Dunning-Kruger is that, at that point in the discussion., my suspicions were confirmed that you knew next to nothing about the topic you were opining so vehemently about. And you now claim that you “clearly and comprehensively refuted” the argument (i.e. that the adverse position doctrine still has some uses in law) on the basis of citing an undergraduate essay.

    The fact is, Ikon, you have just given us an absolute textbook example of the Dunning-Kruger effect. Textbook.

    I actually don’t have any personal attachment to the adverse possession doctrine, and I wouldn’t bat an eyelid if it were completely replaced with other legal tools that served the same function. I agree that it does have archaic aspects to it and it does, superficially at least, appear to promote the unjust appropriation of property. But your insistence that you have ‘comprehensively demonstrated’ the correctness of your position, when in fact you have made it pretty clear you don’t really understand what you are arguing about, strikes me as bizarre. But then, I have been known to dig in for the sake of digging in when I get into an argument about something as well, so I suppose it’s not that unusual.

    Pace.

  85. John Quiggin
    October 3rd, 2016 at 11:01 | #85

    Let’s call a halt to this one. I’m not interested in adverse possession and the thread has been well and truly derailed.

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